Metadata, Transparency, Outsourcing & Lawyering.

eDiscovery Class

March 29, 2010

1

The FactsMARKINS has been a practicing attorney since

October, 2001. MARKINS was employed as an

associate attorney at the law firm of Huddleston

Bolen, LLP (“Huddleston”)

The Facts

His wife, also an attorney, was similarly employed at

the law firm of Offutt, Fisher & Nord (“OFN”).

The Facts In late October or early November of 2003,

MARKINS began accessing his wife's OFN e-mail

account without her permission or knowledge.

MARKINS testified that the purpose of reading his

wife's e-mails was to secretly monitor her activities

because he believed she had become involved in an

extramarital affair with an OFN client.

The Facts MARKINS further testified that, initially, he

improperly accessed only his wife's account and later,

that of another attorney, an OFN partner. Eventually,

however, MARKINS’ curiosity got the better of him,

and he began accessing the e-mail accounts of seven

other OFN attorneys.

The Facts

The password to his wife's e-mail account was her

last name. Similarly, the passwords to the e-mail

accounts of all OFN attorneys was the individual

account holder's last name.

The Facts When an OFN attorney began to suspect that her e-

mail account had been improperly accessed, OFN

launched an investigation. From the investigation, it was

learned that on numerous occasions from sometime prior

to November 7, 2003, until March 16, 2006, MARKINS

gained unauthorized access to OFN e-mail accounts from

three IP accounts:

The Facts

These accounts included MARKINS’ Huddleston IP

account; MARKINS’ residential IP account; and the IP

account at the Hampton Inn in Beckley, West Virginia,

where MARKINS had been monitoring a trial in which

both Huddleston and OFN clients were being represented.

The Facts

It is undisputed that MARKINS improperly accessed

the e-mail accounts of OFN attorneys on more than 150

occasions.

The Facts The confidential client information that had been

accessed by MARKINS , a large mass tort case that was in

litigation during the time period at issue. Both law firms

represented co-defendants in that litigation. In March,

2006, MARKINS, along with other lawyers whose firms

were involved in the mass litigation, was monitoring the

trial from the Hampton Inn in Beckley, West Virginia.

The Facts While monitoring the proceedings, MARKINS gained

unauthorized access into various OFN e-mail accounts

from the Hampton Inn's IP account. Huddleston's mass

tort client had a contractual relationship with and a claim

for indemnity against OFN's client. Though the claim was

not then being litigated, the information included in the

firm's e-mail system would have been “helpful” to

Huddleston's client.

The Facts Since MARKINS’ misconduct was reported by the

Charleston Gazette newspaper and the Associated Press,

OFN “has suffered further damage to its image and

reputation.” One of the firm's clients expressed “serious

concerns” about the security breach and about whether

MARKINS improperly accessed important information

concerning that client.

The Facts

This client has put the firm on notice of a potential

claim for damages against it. The Firm anticipates that

similar concerns will be expressed by other clients in the

future and that the negative ramifications and stigma of

MARKINS’ misconduct will be felt for many years.

Questions

Who are the potential plaintiffs?

Questions

When should MARKINS’ law firm

issue a litigation hold?

Questions

In the Rule 26(f) conference, what, if

anything, should MARKINS’ law firm

keep the other side from learning

about the law firm’s information or

systems? Why?

Questions

What kind of metadata would be

important in this case?

Questions

Would MARKINS’ law firm want to

collect and process its own electronic

discovery? Why?

Questions

How would the law firm representing

MARKINS and his firm go about

outsourcing the eDiscovery?

Questions

What issues are involved in selecting

an eDiscovery Vendor?

Questions

What issues are involved in selecting

an eDiscovery Vendor?

Reputation

Bench Strength

Costs

Questions

Other outsourcing issues:

Questions

What kind of ethical and liability

issues do you see in this case?

The CaseSupreme Court of Appeals of

West Virginia.

LAWYER DISCIPLINARY BOARD, Petitioner

v.Michael P. MARKINS, a Member of the West

Virginia State Bar, Respondent.No. 33256.

Submitted April 1, 2008.Decided May 23, 2008.